I tried to post in a rush today and botched it horrifically.

On top of missing the substance of Sleeper's post by not reading the huge quote in the middle that was clearly being referred to, I also botched the core of my point about ideology.

Ideology clearly influences how some people rule in cases of law. There seems to be a tendency for many judges legal rulings to line up with their political philosophy. The 2000 election ruling seemed to clearly line up under party lines. This is not a science, and I believe some people have the extraordinary ability to rule under what they think is the neutral interpretation of law. These people do the ordinary extraordinarily well.

I rushed this too, so I probably didn't clear anything up.

I am watching Alito's opening statement right now and I am surprised how nervous he sounds. It is too bad that he had to follow the ultra smooth Roberts...nothing against him but in contrast to Roberts he just doesn't seem as likeable.

Upon review, I am very troubled by Judge Alito's pattern of rulings regarding civil rights. If he had been on the Supreme Court rather than Sandra Day O' Connor when the University of Michigan ruling was handed down there is no doubt in my mind that he would have struck down the affirmative action programs of the school.

However, it is difficult for laymen to properly scrutinize a nominee's judicial temperament. I defer to learned scholars such as Cass Sunstein, author of the book Radicals In Robes who does not seem at all alarmed at the prospect of Alito ascending to the Supreme Court.

A reading of the opinions of Samuel Alito reveals that he is an unexpectedly interesting judge, with a conservative record that shows a very different tone from that of Justice Scalia or Justice Thomas. He does not press ambitious claims, and each of his opinions is firmly anchored in the law. At the same time, his overall pattern of votes shows a great deal of deference to established institutions.

Unlike, say, Justice Scalia, Judge Richard Posner, and Judge Michael Luttig, Alito avoids theoretically ambitious claims. He rarely asks for large-scale reorientations of the law. His opinions are both measured and low-key. He does not insist that the Constitution must mean what it meant when it was originally ratified. If each opinion is read in isolation, the evaluation, even for those who disagree, would almost always be this: solid, more than competent, unfailingly respectful, and plausible.

http://www.tnr.com/doc.mhtml?i=w051031&s=sunstein110105

Sunstein also said in NEWSWEEK:

From the early reading I have done, he seems much more predictable than Justice O’Connor. Some will like that and some won’t. But the real point is that people should learn a lot about what he has been like [as a judge] before making up their minds. One thing the president deserves credit for is appointing someone with extensive experience and a lot of abilities.

I'm going to have to watch and listen and learn more about Alito before I can offer an informed opinion as to his fitness to sit on the Supreme Court. Let's just hope the Judiciary Committee senators use the opportunity to ask smart and thoughtful questions and not just bluster and posture for the camera and their constituents.

And should he answer those questions in the same way Ruth Bader Ginsburg answered hers?

It's been known the democrats are going to sling as much mud as they can at Alito, even when they know it to be untrue. They are just hoping some of it sticks.

QUOTE

Questions for Debate:

(1) Do you think Justice Alito is a good choice for the USSC?

Yes. Highest ABA rating and a good record. What else is there? Certainly he has a conservative bent but what do people like Teddy K think – Republicans are going to nominate a known liberal??? Would Dems nominate a known conservative. Of course not.


Yes. He is qualified and his record is far from radical.


Only if the Dems insist on a fight. Then I believe the Republicans WILL do it.

First, I don't know what Ruth Bader Ginsburg's testimony before the Judiciary Committee has anything to do with Samuel Alito's appearance? Oh...I get it. Because she was nominated by a Democrat she got the kid gloves treatment. Is that it?

Secondly, whenever someone makes an unsupported statement such as, "It's been known the Democrats are going to sling as much mud as they can at Alito, even when they know it to be untrue," I have to wonder where the hell they're pulling this "everybody knows" kind of logic from. Out of thin air, methinks.

That's the difference between you and I about Alito, Sleeper. I haven't already made up my mind about him. I'm still waiting to find out if he has a open mind or is just another rigid ideologue.

Unlike some of the partisans on the political Left and Right whose knees are already jerking.

I just spent the last hour listening to Alito testify to questions by Senator Biden.

I think Alito did quite well at explaining his positions. He certainly does not come accross as a right wing ideologue. But as Sleeprer has mentioned he IS being directly compared to Ginsberg. Biden says this is important (to him) because Alito could be a “swing vote”.

It’s clear that the Dems would like the “swig vote” to be as much in line with their ideas as possible. No surprise there. IMO that should not be part of the decision process for a Supreme Court Justice.

Give me a break Ted Democrats are not comparing Alito to Ginsberg but the retiring Justice O'Connor. The Republicans were using the Ginsberg confirmation hearings and her past association with the ACLU to show that while they don't like what the ACLU is for they approved of Ginsberg. Even though when Clinton was looking for someone to fill the vacancy he asked Hatch who the Republicans would not have a problem supporting.

How Clinton Treated Hatch



I have been watching the hearings the last 2 days and the opening statements I have listened to several times last nite fully. While my opinion is not in support of Alito because of several of his opinions in cases as well as in the justice department. Several things he did say today did give me some reassurance that he would be a fair judge despite his past appeals court case opinions.

When comparing O'Connor to Alito it is true the democrats would favor any justice that is not a one sided vote all the time where you can predict how they would vote before their opinions come out.

For me personally I like it when you can look at a judge's past cases and not already see what the outcome that they will come to in the case they are hearing or might hear in the future. That gives me reassurances of everyone can get a fair shake in the courts based upon the arguments presented in the case while following the law.

I think Biden did a good job as well he didn't say he was going to vote for or against him but said their is some things that are puzzling to him, which for all intensive purposes Alito answered and its up to Biden to determine if Alito answered them to Biden's satisfaction.

My mistake. Same issue. Biden would like Alito to be an O’Connor.





I agree. Alito is not on any extreme. I feel confident Biden will vote on Party lines against Alito – I hope I am wrong.

Point of info: Alito is being compared to Sandra O'Connor. She is the "moderate conservative" swing vote Alito will replace.

Ginsburg is brought up by conservatives as justification for Alito to remain mum on any subject that could increase his chances of getting Borked.

I didn’t watch the opening interrogation yesterday. Going by news reports I didn’t miss anything. It was a Roberts repeat of Senators huffing and puffing about the importance of their vote (they love to hear themselves speak) followed by a written rebuttal from the nominee. If it’s just like Roberts’s hearing Republicans will break the plane of Alito's sphincter with their noses and Democrats wail about political Armageddon. I wish there was some honesty and perspective to this elephant and donkey show.

Most of all I wish Democrats would go ahead with the filibuster and force Frist to go nuclear. It would be a first step towards removing the Senate’s pejorative to halt nominations regardless of who’s in the White House and, hopefully, when/if Alito overrides Roe the majority in favor of abortion will remember which party opposed him.

I corrected my error above.




I am with you on the “show” and it is one reason why the people of this country hold out politicians in such low regard.

Going “nuclear” in my opinion will not happen because both sides know it will end forever their ability to use the filibuster as they have and IMO neither side is ready to do that yet. IMO Alito will not help override Roe v Wade

This has to be one of the most curious statements to appear on this board since I’ve been here. We’ve had five years of an administration that has slung mud, not only against Democrats, but Republicans who have gotten in their way. You can start with the tarring by the Bush/Rove machine of John McCain in the 2000 South Carolina primary. The list includes--but is not limited to—Paul O’Neill, Joseph Wilson and Richard Clarke.

Last night it was Republican National Chairman Ken Mehlman painting Democrats with a rather larger brush on Hardball.



http://www.msnbc.msn.com/id/10788602/

According to Washington Post correspondent Dana Milbank, speaking on Countdown it is the Republicans who want to pick a fight.



http://www.msnbc.msn.com/id/10788574/

Never has there been a clearer case of the pots calling the kettles black.

This is so tiresome. Roe v. Wade being overturned would return this issue to the states, not make abortion illegal. Then, voters in a state can elect politicians who enact policies they like.

Roe v Wade has been used to justify zero regulations of any kind on this constitutional "right," including essentially unregulated third-term abortion, and most recently when it was used to overrule the Pennsylvania minor parental notification law. I think I remember Dianne Feinstein from the Roberts confirmation saying that husband-notification (that a wife was going to kill his baby, er, fetus) was akin to going back hundreds of years blah blah blah.

If most Americans knew how extreme the NOW and NARAL interpretation of Roe was, they would be sickened. From your poll:


I caught some of the discussion about Roe being law for a long time, earning "super duper precedent" status. If we let our courts decide laws based on length of time for stare decisis, then we all agree that Dred Scott is still a slave, and Abe Lincoln was abusing presidential power...

Okay. So... what are you disagreeing with?


Eh? Do you consider allowing third-trimester abortions in the case of a woman's life and health unresitricting? Restrictions on late-term abortions have been covered in this archived thread, which you participated in. If you don't believe Roe allows for state-by-state restrictions in the second- and third-trimesters of pregnancy you can start a new thread. It would be interesting to see how you explain hundreds of restrictions enacted by states dealing with late-term abortions since 1974.

I looked over that thread, and forgive me if I missed it, but do you know if these laws have actually been enforced? Has there been a single successful prosecution or other legal corrective action (revocation of license, etc.) for an elective abortion where the mother is a competent adult, since '74?

Now here, I'm not referring to situations where the abortion went "wrong", such as can happen from time to time with surgical procedures in general. I'm talking about cases where the abortion itself was ruled illegal.

This issue is a key one for the Senators on the committee, so I thought it was relevant. I was referring to the point where voters would "remember which party opposed him" as I believe most people would actually agree with repealing Roe and the resultant restrictions. Those restrictions are favored by most, even in the poll you cited. I don't think most Americans understand Roe, because they've been brainwashed with the "choice" message. Even some of the Senators on the committee say that overturning Roe makes abortion illegal. Which it would not.

One area where you and I agree is that these hearins are excellent for both parties to see - just how self-important Senators are. Ugh.

edited to add Senatorial Bloviation ratios from anklebitingpundits.com - Biden and DeWine led the pack, spending 3/4 of their time "asking questions," and almost all of the Senators spoke more than Judge Alito. It's funny, the first thing I learned about interviewing people for a job is that the interviewee should do most of the talking.

Democrats

Joe Biden 78-22% (DE) (3,673 - 1,013) (a 1,879 word, and 13 minute opening "question")

Chuck Schumer (NY) 75-25% (3,555-1,165)

Ted Kennedy (MA) 69-31% (3,439-1,539)

Pat Leahy (VT) 60-40% (2,714-1,874)

Russ Feingold (WI) 56-44% (2,976-2,364)

Diane Feinstein (CA) 42-58% (1,912-2,593)

Herb Kohl (WI) 37-63% (1,835-3,094)

Republicans

Mike DeWine (OH) 72-28% (3,398-1,323)

Lindsey Graham (SC) 65-35% (3,032-1,643)

Jeff Sessions (AL) 61-39% (2,827-1,773)

John Cornyn (TX) 56-44% (3,407-1,900)

Jon Kyl (AZ) 53-47% (2,594-2,255)

Orrin Hatch (UT) 54-46% (2,686-2,242)

Chuck Grassley (IA) 51-49% (2,305-2,183)

Arlen Specter (PA) 50-50% (2,232-2,194)

(1) Do you think Justice Alito is a good choice for the USSC?

Yes. He's highly qualified, highest ABA rating, lots of appeals court experience, considered a brilliant legal scholar by his peers, and I like his conservative judicial philosophy. He's very nearly the best possible nominee from my PoV. Ideally, I'd have preferred a libertarian woman, but oh well, I can't afford to be quite that picky.

(2) Will he be confirmed?

Yes, but not by as big a margin as Roberts. He's equally qualified but a tad more controversial.

(3) Is there a risk that the constitutional option will be triggered?

Yes. If the Democrats are determined to filibuster, it will happen. As far as I'm concerned, that'd be a good thing.

(1) Do you think Justice Alito is a good choice for the USSC?

I waited to weigh in on this until I had a chance to catch the confirmation hearings.....

Absolutely. After listening to most of the confirmation hearings over the last two days, Alito has convinced me that he will be the best addition to the USSC to this point during my lifetime. He has deftly shrugged off de-railing attempts by Democrats. He appears to me as a straight shooter who accurately interprets the Constitution, especially when he states opinion such as: that he is "particularly proud" of his work on cases arguing that "racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."
Even though I reluctantly lean more to the woman's choice philosophy, I agree with his interpretation.

(2) Will he be confirmed?

Again, absolutely. For all of the promises of fire and brimstone from the punditry pageant of the left, their offense has been unbelievably weak. I believe that the left foresees the folly and damage at attempting to filibuster.


(3) Is there a risk that the constitutional option will be triggered?

No, I think that in this instance, the loyal opposition knows that the tired mantras and blather about Alito 'turning back the clock' and 'overturning Roe v. Wade, thus making abortion illegal' etc....are not going to get them anywhere in the face of logic, common sense and public opinion. They know that Alito has the 'gold standard' stamp of approval from the ABA. The same standard touted when one of their nominees were up for confirmation. The ABA evaluates a nominee on judicial temperament and integrity. The Democrats are attempting to turn the hearings into an evaluation of judicial philosophy, but are failing to gain ground. Maybe if Republicans had done the same to Ginsburg, they would gain traction, but I don't see it happening.

With the main event concluded and only the procedural matters remaining, three things are clear to me from the Judicary Committee hearings on Samuel Alito's nomination to the Supreme Court.

1. The confirmation system is a farce. Whichever party is in control, if the nominee is of the same ideology, the majority party plays defense and the minority party plays offense. Most of the Democratic and Republican senators on the committee were motivated more by their own agenda and chose to poise and pontificate instead of actually asking important and relevant questions to a man who is going to be sitting on the Supreme Court for the next 20 to 30 years. I found Senators Kennedy, Coburn and Graham particularly clueless.

2. There will be no filibuster by the Democrats. They needed to find proof that Alito liked to drink the blood of small children or look at girlie magazines while he sits on the bench. Failing that, the hard political realities are a conservative president is likely to appoint conservative judges to the federal court and that is just a bitter truth the Democrats have to accept. The Democrats hold out some small hope they can chip away at the Republican majority in the Senate in the 2006 elections. That would go by the boards if they filibuster, Senator Frist invokes "the nuclear option" and in retaliation the Democrats use procedural tactics to close down the Senate. It would lead to charges that they were being obstructionists in a time of war. That's not a label the Dems want to be tagged with going into November.

They will talk tough, but ultimately Harry Reid and company know they didn't get a killshot on Alito. He will be confirmed on a party line vote with a few Democrats voting for him and maybe one or two Republicans voting against due to Alito's stance on abortion.

3. The political realities trump the judicial considerations. The Democrats know playing the filibuster card is a one-shot, all or nothing deal. If they use it and it doesn't work, what will they do if 85-year old John Paul Stevens wakes up one morning with a really bad cough? Supreme Court justices get sick and die just like anyone else. If Stevens or any of the other moderates should become ill, incapacitated or resign, the chances of President Bush replacing them with anything less than a confirmed right-winger is all but assured.

The option to filibuster is the last ace the Dems have to play. Perhaps it's best to save it for another day because it's a gambit that does not have multiple usages. There are times to be principled and there are times to be pragmatic. All the Democrats have to do is count the votes and know they can't win this game.

In the meantime, if opponents of Judge Alito find it difficult accepting the inevitability of his ascendance the solution to their angst is simple.

Elect more Democrats and fewer Republicans. Until then, that's just the way of the world. The conservatives had to suck on it when liberals controlled Washington. Now that the shoe's on the other foot it doesn't taste any better for us than it did for them.

You may end up being right but Reid hasn't exactly been very predictable and I think given the circumstances he has done a fairly good job so far. He just released this statement:


That doesn't say filibuster to me quite yet but it doesn't say that they are going to roll over either.

I wonder if Reid has forgotten that Miers was their example of cronyism? Nobody liked Miers--not Democrats, not Republicans. He must have a very selective memory.

It seems to me that Alito is in the clear. Democrats have consistently brought up his "troubling" or "alarming" nature, but none of their lines of inquiry have turned up anything out of the mainstream of conservative thought on Alito.

I agree with MSNBC: Alito's confirmation is very likely and I doubt there will be a filibuster.

Actually, The Republicans in Congress seemed supportive of Miers until they started taking flack about her from their base, the loudest outcry came from the Rreligious Right. That is probably off topic here but to say her nomination was killed in the way you suggest is a pretty significant re-writing of history.

It also appears the CAP smear campaign fell flat on Kennedy and the Democrats as well..

Article



Maybe Senator Kennedy would like to read them again and again and again...

The Democrats have been grasping for straws with Alito. I am embarrassed for them. They have looked foolish throughout the hearings. Show some class!

Well, the hearings are over and I thought I'd add my final analysis to this topic before the votes came in. First...

(2) Will he be confirmed?
Yes, I think he will be, I'm predicting the vote will be 58 to 42 which would be pretty close to a party line vote.

I don't think that anyone is going to filibuster Alito, but even if they did that talk of the "nuclear option" is just talk. First of all the GOP wouldn't want to lose the ability to filibuster when they aren't the party in the majority. Secondly, as the Democrats proved in late 2005 there are plenty of other procedural tricks that can be used to the same effect.

But... just because he will likely be confirmed doesn't make him a good candidate. The hearings were probably one of the most boring things I've experienced in recent history. Every senator was up there being dramatic and trying to look important, we had Alito's wife playing to the media by crying and during the hearings Alito didn't say one single thing that further clarified his judicial philosophy.

You know that liberal media™ we have? Well they decided to focus on the Democrats all week instead of analyzing Alito's responses, fact checking them and calling him out on them. That is of course what they should have done but that wouldn't have made for good TV.

CAP: I think that people focused on this a little too much. However, regardless of whether any documentation exists to show Alito's membership or participation in this organization two facts remain.
1) When asked to cite evidence of his "conservative credentials" during a job interview in the Reagan administration he cited his membership in CAP. In the 80's CAP was pretty well known for anti-minority and anti-women stances. So either he did believe in all of those things or he was lying to get the job, you decide which is worse.

2) When asked in his 1990's senate confirmation hearings if he belonged to the group he said he didn't. So again either he lied in the 1980's to get a job or he was lying then. You decide.

Vanguard: If you've been following you are familiar with this case. In the hearings Alito skirted around it saying that when in the Supreme Court he'd adhere to the code of ethics there. That doesn't answer the question though, he promised to recuse himself from the Vanguard case where he had significant holdings (close to $1 million) and he didn't. That should raise questions in everyone's mind as to whether he'll recuse himself in the Supreme Court where appropriate.

Roe v Wade: Before the confirmation hearings started it was right there in black and white that he didn't believe the decision was valid and should be overturned. During the hearings he did about everything he could to avoid talking about it with any sort of substance. Abortion isn't my number one issue so I'm not deeply offended about this, but to all but the most partisan it should be plainly obvious how he feels about this issue. Furthermore it should be plainly obvious that he was selected, in part, to satisfy the religious right after they completely sabotaged Miers nomination.

Executive Power: This is the thing that troubles me the most about Alito, his views on the power of the executive. His views suggest the president is more like a king than a president and he doesn't have to answer for certain things to any branch. Given that we'll likely see several cases concerning the power of the presidency coming before the Supreme Court in the coming years this is very troubling. This Page does a decent job of presenting the arguments here.

The way that'll play out in the court is the President will have the ability to do whatever he wants with intelligence, even against Americans, he can do whatever he wants with enemy combatants, gitmo, etc. This is a pretty big deal as far as the war on terror is concerned.

In short, Alito did a good job of obfusicating, dodging questions and keeping his mouth shut. He was well prepared. The media also helped him out considerably because they decided to focus on the Democrats instead of the person being confirmed and checking the facts behind his statements. The only places I could find any substantive coverage of Alito himself were on editorial pages and blogs, the front page news was all about the Democrats doing something or other. We sure do have a liberal media alright.

I'm responding to Cube Jockey, without the quotes. The reference to Mrs. Alito 'playing to the media' and crying is absolutely shameful. Shame on you and the other Democrats. I respect your discontent with the process, and even with the nominee. But it seems that you forget that a decent human being was dragged through the mud and called a sexist and racist for 3 days. Some of us get so lost in politics of the day that we forget to be human it seems. More importanly, it hasn't occured to the Democratic party that America-loving, second generation Italian immigrants used to be what the Democrats called "their base." Just some food for thought as they continue to descend into parody.

Most of your other objections relate to his views and judicial philosophy. Which is fine for you personally, but not the way to approve judges that are "well qualified" according to the ABA. That the Democratic Senators on the committee chose to blow off the testimony of Alito's fellow judges (some black and some women) just shows that they really don't care about his work as a judge, they'd rather look at 20-year-old newspapers published by Princeton alumni. Kennedy even quoted from a satire as if it were serious. Politics at its finest.

We had the chance to have an intelligent conversation on issues of the day. Schumer could have asked "does Bush have executive power to implement a quarantine if/when the bird flu hits" and it would have been a topical and thought-provoking conversation on executive power. Instead, we had death by bloviation. For once, the media points out the Democratic senators are hopelessly out of their depth (unitary executive, super-duper precedent) and they are accused of being biased. Beautiful. Even a liberal media recognizes hypocrisy, ignorance and delusional self-importance sometimes, when they are sent to cover it for 3 days.

carlitoswhey – like most who favor this administration and their actions, you’ve cleverly dodged an extremely valid concern that that CJ pointed out in his post: the issue over CAP. Not his membership, or what it stood for, but the fact he either lied 20 years ago or is doing so now.


What’s good for the goose is good for the gander, I’ve been involved in politics long enough to know that it will come back full circle.

I’m fairly confident the next president will be a democrat and if they have the opportunity to nominate a Supreme Court Judge, than regardless of their judicial philosophies or former memberships, as long as the ABA gives them the “well qualified” seal of approval than I fully expect you to give that nominee an unobstructed pass to the court.

Well isn't this refreshing, the Democrats are responsible for everything per usual. Good to see you giving an impartial analysis of the hearings. What about the softball questions that Republican senators lobbed at Alito? Think the media could cover those instead? And I stand by my remarks about Mrs Alito.

The whole process is really a joke because at the end of the day nothing changed. Everyone went into those confirmation hearings with their mind already made up (perhaps with a few exceptions) and they went through this drama that was the hearings where absolutely no useful information was revealed and nothing was learned. The Senators are going to give a rubber stamp vote across party lines with perhaps a few people from both sides switching over to the other side because of an issue they care about or for political reasons. I can see perhaps a few pro-choice Republicans voting No and I can see a few Democrats worried about re-election in their states voting yes.

The media should have covered the substance of Alito's responses if they were actually doing their jobs. Instead they chose to go for ratings. That is the sad state of the corporate media today, it is far from liberal. You can say that it is as much as you'd like but reality constantly proves you wrong.

I also note that you didn't address a single point I made in my previous post that matters as far as Alito's serving on the Supreme Court for the rest of his natural life and making decisions that will effect all of us.


I'm gonna give that one a big "who cares?" No one should be given special consideration because they are italian-american, african-american, hispanic, asian, or female. This is a job you hold for life, you must have integrity, honor, competence and a great respect for the Constitution without having an agenda. Race or gender is not a condition that should be evaluated.

While CAP is portrayed as "anti-woman" and "anti-minority" what is actually was was "anti- standards-reducing affirmative action programs". I found it funny that Ted Kennedy (himself a member of an "eating club") would attempt to take Alito to task for an article he didn't write and never read.

I also found this funny: How Many Dems Could Be Confirmed?

I also find it funny when Democrats argue against Alito because he would favor the power of the government. Especially coming from Kennedy, who's only job for the past four decades has been a government job. Especially Schumer specifically wanted to make sure Alito would not limit the federal power by narrowly interpreting the Commerce Clause.

I found this whole process funny.

Awwww...did those mean ol' Democrats make Mrs. Alito cry? Bad Ted Kennedy! Bad Chuckie Shumer! Bad Dickie Durbin!

Apparently, some of us also get so lost in the politics of the day that we forget to get the facts straight.

It wasn't any of the Democrats that made Mrs. Alito break out the Kleenex. It was good ol' boy Senator Lindsay Graham, Republican who had the floor when Slammin' Sam's better half had her weepy moment.

On Wednesday, more than eight hours after the hearing was called to order, Mrs. Alito began to weep when a supportive senator, Lindsey Graham, a South Carolina Republican, was questioning her husband, who was seated a few feet in front of her.

Mr. Graham was making the point that criticisms of Judge Alito's integrity were unfair, and he chose to do so by posing mock-accusatory questions intended to demonstrate how implausible the claims were.

When Mr. Graham asked him in the same fashion, "Are you really a closet bigot?" -because of his membership in a Princeton alumni group that opposed the university's affirmative action program - Judge Alito said he was "not any kind of bigot," to which Mr. Graham agreed.

At that point, Mrs. Alito began to sniffle audibly. She hurried to a corner of the hearing room, then went into an anteroom, where she sobbed for a few minutes. She later returned to the hearing room.

http://www.nytimes.com/2006/01/12/politics...html?oref=login

I wonder if Martha Alito high-fived her husband's handlers in the anteroom and said, "mission accomplished."

Whether or not Judge Alito is "a decent human being" is not the point. What is the point is whether or not he supports the racist, homophobic, sexist and bigoted ideas of an organization he once proudly proclaimed his membership in when he went looking for a job in the Reagan Administration, but now can't recall anything about when he's trying to land a lifetime gig on the Supreme Court. It is entirely within the rules of the confirmation process to wonder if the company he kept colored Alito's ability to be a fair-minded and impartial jurist.

Otherwise, Maudlin Martha's crying jag was the high point of a low comedy. Even if it was about as genuine as a tofu steak.

It would be nice though if the "outraged" supporters of Alito bothered to get their facts straight before spinning them out of control.

This is something both sides can agree on and have warned both nominees about. They don’t want a 30’s court engaging in the type of “judicial activism” that doesn’t give Congress deference to pass whatever legislation strikes their campaign-contributing lobbyist’s fancy.

Welp, I wondered when Mrs. Alito would come up. Like the Post I also wonder what is it about a woman crying that makes men rubbery and the woman is “transported to the land-of-beyond. … The crying wife is sacrosanct, an argument-ender.”


I agree with the Post’s conclusion. She cried from relief. Lindsay Graham basically told Alito he wasn’t a bigot. That, or Martha, like myself, wants to rip her ears out every time Graham talks. Or better yet, just like Alito was coached by Graham, she was coached by teary-eyed Tom “I only performed two abortions and sterilized one woman against her will” Coburn.

Cindy Sheehan was loud and obnoxious, yes, but she had an experience a tad more dramatic than hardball politics. Unlike Martha, who could’ve opted to stay out of the proceedings while Senators pretended to debate Alito’s worthiness, Cindy wasn’t party to her son’s deportation and subsequent death. One side rolled their eyes and labeled Cindy's speech the stuff of “lunatic ravings” anyway. How composed could Martha have been if she was handed a microphone, surrounded by people encouraging her to nurture her hurt?

As a woman I roll my own eyes whenever either side stands up for the injured woman. I don’t have anything else to say except… well, men? Keep being men.

CJ, your first two concerns (CAP and Vanguard) are astonishingly trivial.



The records of CAP have been scoured, and Alito's name was absent. I suspect he was lying (perhaps stretching the truth) on the 1985 job application. I'd put this lie in the category of "resume padding."

Here's the document that started the kerfuffle. Alito has a question to answer on the job application:



His answer begins: "I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this Administration." But he hasn't actually been very active in political causes: "As a federal employee subject to the Hatch Act for nearly a decade, I have been unable to take a role in partisan politics."

So what can he claim?



I've been hearing all week that Alito "bragged" or "boasted" about his CAP membership. I don't see it. I think he was active in FedSoc, wrote a couple articles that didn't get published in conservative magazines, and needed something else to fill out the paragraph. Maybe he subscribed to the Prospect, and thought "hey, I'm a Princeton alumnus, and I'm conservative -- let's put it on the application."

So I think he padded his political resume. You're free to think this disqualifies Alito from serving on the Supreme Court, but I think it's utterly irrelevant when we've got 15 years of his non-political work product as a judge to look at.



This one is completely bogus. Not only did Alito have nothing to gain or lose in Monga, neither did Vanguard! The case involved money in a dead man's retirement account. His former business partners claimed he'd misappropriated the money from their business. Monga filed for bankruptcy, and the partner/creditors ended up with the money in the account. After Monga died, his widow tried to it back.

Note: Vanguard doesn't get to keep the money. Either the creditors get it, or the widow does. Alito was not required by any ethical rule to recuse himself.


(1) Do you think Justice Alito is a good choice for the USSC?

Good enough. Better than I expected from Bush.

(2) Will he be confirmed?

I'd bet on it.

(3) Is there a risk that the constitutional option will be triggered?

Very low. Less than 5% chance.

Well thanks for that, but I said as much in my post. The most important issue in my opinion is Alito's opinions on the power of the executive. I included all of the issues (as I saw them) for completeness.

If you think lying and judicial ethics are trivial matters then I guess that is your opinion, some people don't feel that way though.

So if you'd care to address the more substantial issues I'd be happy to respond in greater detail, but by going after these insignificant things you haven't scored a victory or something.


He didn't have to, their reputation was well known at the time. If someone asks you to "Please provide any information that you regard as pertinent to your philosophical commitment to the policies of this Administration" and you say (in the 80s) I'm a member of CAP that means something, and nothing more needs to be said. Of course as I said he later (and even today) claimed he wasn't a member, so when was he lying?

And the whole "bragged" and "boasted" part of this is courtesy of our ineffectual media.

Unfortunately, this is indeed the case. Did anyone (especially any of the Senators) learn anything during this hearing? No. It was really just a bunch of grandstanding. The current process ensures this. Candidates know what they can and can't say, and Senators grandstand, either stating the obvious and their own opinion, or asking questions they know can't be answered (and usually then asking them repeatedly). End result...a whole lot of adieu about absolutely nothing. Don't ya just love our political system???

Perhaps I read too much into the order in which you addressed the issues. I agree that executive power is more important, and I actually share some of your concerns there.



So the issues are trivial, except maybe they're not trivial. And you're still stuck on the "ethics" issue, as if there were any substance to the Vanguard charges. (The ABA says there's no ethical issue.)



As I said, he probably padded his resume (lied) on his application for a political job. For the last 15 years he has excelled as a judge -- a non-political job. I think the latter fact is more important and relevant than the former.

On the more important issue, I'm troubled by the Bush administration's arguments about the scope of their "war powers." I think Alito is more likely to accept such claims than, say O'Connor would be. But I think the "unitary executive" thing is a red herring. Alito clearly explained that his understanding of the term had nothing to do with the scope of executive powers. It simply means that the Consitution puts the president in charge of all the powers that are given to the executive branch.

The "unitary executive" is the "Constitution in exile" of 2006. A scary-sounding catch phrase that's ultimately insignificant.

I'm not too worried about the presidential signing statements, either. The president can claim whatever he wants to in them, but no court has ever referred to them.

Most judges occasionally refer to legislative history when the text of a law is unclear. Scalia is an exception. If Scalia doesn't think it's legitimate to consider legislative history, I'm sure he won't be any more inclined to look at presidential signing statements. Roberts and Alito strike me as too cautious to break new ground there, as well. Thomas might (he's big on executive power), but I really don't see the whole Court getting there.

Well, I stand by my remarks that this says more about you than it does Mrs. A.


Yes, the corporate media spent the whole week reminding me that CAP was against "increased people of color" on Princeton campus, never once mentioning that they were actually against affirmative action. In other words, lowering Princeton's standards for some students. Not a terribly PC notion, but not exactly racist.

Honestly, you had 12 out of 16 Senators that couldn't hold an intelligent conversation on any of the key issues, and you expect the media to write about them and people to read about them? Seriously.

I noted that you objected to Judge Alito's philosophy. Object away. Knock yourself out. I object to Justice Ginsburg and Souter's philosophy, and they were confirmed with -- what, 90% of the votes?

You missed my point here. I wasn't saying anything at all about his being confirmed. I was pointing out that the mere fact that a second-generation ethnic white guy is being nominated to the SCOTUS as a conservative continues to elude democrats. There are millions more where he came from and you can't see the reasons for this. You guys are going to have a very serious problem cobbling together 50% of the vote ever again as you continue to forget what made JFK's Democratic Party great.

I think that your remarks stand on their own here. I'm no fan of Lyndsey Graham but I think he made his point and I agree with others that these were probably tears of relief that the whole mess was over.


Indeed.

Sen. Edward M. Kennedy belonged to a social club for Harvard students and alumni that was evicted from campus nearly 20 years ago after refusing to allow female members.....The club has long been reviled on campus as "sexist" and "elitist" and, in 1984, was booted from the university for violating federal anti-discrimination laws... But hey, let that not stop the leaver-of-the-scene-of-a-deadly-accident-that-killed-a-girl (is this better than "killer" nt?) from calling the kettle black. Since we're all reading minds here, I bet that deep down Teddy resents a non-WASP even being in the Ivy League.

Maybe. And they could have been tears of relief that she remembered to cry on cue. There are some liberal blogs that allege Senator Graham was part of the group that prepared Judge Alito for the hearings. I'm not saying this is true until I find a corroborating source I trust. However, IF it is true, then it casts doubt on both the Senator's "impartiality" and whether or not the fix was in from the start.



When did this become the "Ted Kennedy: Supreme Court nominee" thread, CW?

Once again, I thought this thread was about Sam Alito's nomination. When did Dubya nominate Teddy? This strategy of "Well, you're a bigger one than I am" is a really weak argument and just shows how desperate the right is to put a spin on Alito's membership in a group of bigots.

I have never called Alito a bigot. I have said that he belonged to an organization that was. The claims the right should be making is how active of a member was Alito and did he agree with the group's objectives then or now?

But by all means, keep trying to demonize Senator Kennedy if you think it makes Judge Alito look better. The thing is, Kennedy doesn't have a lifetime job. Alito is trying to get one. That's the big difference here and if you really can't stand Big Ted, why not move to Massachusetts and vote him out?

I'd say it was more like 16 out of 16, and yes I do expect the media to report on the issues. In this case the issue is Alito - what he believes, what he said, and whether it was true. There was zero fact checking of his statements, or lack thereof, outside of editorial pages and blogs that I saw. That says to me that the media pretty much failed.


I didn't miss your point, at least I don't think I did. His race and ethnic background has zero relevance to this discussion and it also didn't play into any of the questions that I'm aware of. Apparently you are suggesting otherwise.

While I am concerned about issues like access to abortion and a willingness to advance his career by highlighting his membership in a bigoted organization, I share Cube Jockey's conclusion that Alito's view on the powers of the executive override any other consideration. This one exchange between Senator Binden and the nominee is sufficient reason to vote against his confirmation and support a filibuster.

(Agence France Presse Article)

In the context of our times, any Supreme Court nominee who is unwilling to state a clear opinion on such a fundamental constitutional question needs to be rejected.

There are numerous interpretations of the Constitution that can be applied to this question to get the answer that a person is looking for. First, there is the originalist position which looks at what the Framers originally intended for the Constitution and iits provisions to mean. Using this position, one could conclude that the President does NOT have the power to wage war without a declaration by Congress. If memory serves me correctly, Hamilton wrote in one of the Federalist Papers about the subject stating explicitly that the President did not have the ability to wage war whenever he felt like as that is what a King does. So in effect, the Congress must declare war and the President runs the ground operations with Congress providing funds. Only time the President can act without said declaration is on an imminent attack. This really gets hazy especially with our latest two conflicts (Iraq and Afghanistan) since Congress authorized force without a formal declaration of war...going to need a constitutional scholar on that one. But my criticism of originalism is that nobody can claim to know the original intent of the Framers because all the Framers had different ideas and opinions when the Constitution was formalized. One can point out one Founder's opinion on a subject such as this and another person can point out another's opinion...how can anyone know the original intent?

A second interpretation is textualism, which i prefer. If i am correct, than that would give the President power over the military again after Congress has declared war. But again this is hazy in today's situation since Congress authorized war and has continued to fund operations without a formal declaration.

And there is the living constitution theory which holds that the interpretation of the Constitution changes as society changes. I will admit i have disdain for this interpretation because i believe it allows for activist judges to make law instead of interpret law.

So it all depends on what kind of judge Alito is. I think he was correct when he said that the issue of branch collission is not settled. Such cases would not have come before him on the Court of Appeals and would go directly to the SCOTUS which is probably why he has not researched the issue.

The Senators asking Alito to judge a hypothetical that lacks any real substance that a real case would does not solve anything since a simple extenutating circumstance would change the entire outlook of the case. It is definately not grounds for rejection.

Then you'll be waiting for a long time. Supreme Court nominees do not give their opinions on matters of law that are likely to come before the court. It's not appropriate, for the same reason why courts do not render advisory opinions. Their job is to only come to an opinion in the context of an actual case or controversy that they're being asked to settle, and to hear all the arguments before making a decision.

The fact that politicians like Biden aren't happy with that doesn't change that principle.

With such an impressive resume I can't imagine a better choice. The media seems to be focused on abortion issues but what I heard in his testimony focused more on war powers. One senator asked him if the President could invade Iran tomorrow. Alito basically said, sure he could but Congress controls the purse strings and he couldn't sustain the action without Congress paying for it. This told me one thing about him, he has great confidence in the checks and balances in the Constitution.

Democrats went after him on the abortion issues and it was a bad move. Alitos wife went out in tears and the display was obnoxious.



Sure he will Democrats have already embarrassed themselves in these hearing and a filibuster would be a big mistake. Unfortunately the vote will probably be down party lines but the straw polls indicate he will get enough votes to be confirmed.



If the Democrats try to filibuster then Frist has said that he would do exactly that, Republicans are pretty confident they have the votes to force a straight up or down vote:

"If Democrats move to filibuster Alito, Frist promises that he will use the nuclear, or constitutional option to stop them.

"So I think it would be unconscionable - I think it would be wrong,” Frist said, “I think it would be against the intent of the founding fathers and our Constitution, to deny Sam Alito an up-or-down vote on the floor of the United States Senate... and that's what the constitutional option is."

http://www.cbn.com/cbnnews/news/051212a.asp

This is a no brainier, Alito has superb creditials and an excellent track record. I can't believe these hearings are not just a formality. The Democrats won't filibuster in my opinion, frankly, I just don't think they are that stupid.

Your argument might carry some weight if we were considering the hair splitting necessary to rule on complex issues involving conflicting case law. Here, however, we are dealing with a fundamental constitutional issue that should be clear cut. I could understand a reply that raised the issue of the enforcement of relevant treaties but to dismiss the question as Alito did is unexcusable. This is particularly so in light of his past speech and statements supporting the pernicious doctrine of a unitary executive. If the Senate can't solicit a response to such a fundamental constitutional question then its constitutional power of advice and consent is meaningless.

Given your interest in legal issues you might also find this John Dean Article of interest. The court that Alito would serve on will unquestionably be required to rule on the legal standing of these "signing letters."

Do you have Alito's actual words on this? Because according to what TedN5 posted at #141, Alito didn't think the question had been settled.

If he had said this, I'd consider it a problem, partly for the fact that he'd be prejudging how he'd hold in a case over a constitutional matter, and more importantly for the fact that he'd be getting it wrong. What would have been the point of inserting the Declaration of War Clause into the Constitution at all if control of purse strings were the only check Congress was intended to have over the President's strategic ambitions? And who's the Congressman that would vote against supporting troops who are fighting and dying for their country, once an operation has already gotten underway?


It's not a question of "complexity". It's a question of controversy. As indicated above, I agree with your view of constitutional war powers. But where I disagree is in having a judge make a statement on a controversial matter outside of an actual case. He doesn't do it with abortion, even though there isn't a whole lot of conflicting case law there, and he doesn't do it with any other subject similarly situated.


The unitary executive theory has nothing to do with this. That has to do with things like independent commissions that Congress creates, that are nominally within the executive branch, but which the President has little to no control over. There are legitimate constitutional questions raised about such laws, but that has essentially nothing to do with the relationship between the executive branch and the other two branches; just with the internal lines of authority within the executive, that's all. And I don't consider the theory all that pernicious.


Well, that is an interesting subject, also, although it too is separate from the question of presidential war powers. Personally, I like Scalia's approach, which is to give very short shrift to both legislative and executive "intent". When in doubt over the meaning of a particular piece of text, Scalia would sooner consult a dictionary than the congressional journal. His influence has gotten to the point where during one congressional debate, when Congressmen were trying to resolve a difference in how they'd word the text by simply declaring their intent in the congressional record, Barney Frank torpedoed that idea with just two words: "Antonin Scalia". I can only hope that "Scalito" takes after his nicknamesake in that way.

I heard the response on NPR, I don't see anything remarkably different in the exact quote.

"The constitution divides the powers related to making war between the president and the Congress. It gives Congress the power to declare war. It gives Congress the power of the purse..." however, "the president has the power of a commander-in-chief..."There's been general agreement ... to support the authority of the president to take military action on his own in the case of an emergency, when there is not time for Congress to react," "

The question of what happens when the Legislative and Executive Branches collide was the question that was far from settled.

"That's a question that I don't think is settled,..."The whole issue of the extent of the president's authority to authorize the use of military force without congressional approval has been the subject of a lot of debate."

The only real answer is it all depends on what provoked the invasion to begin with. Obviously if there is a clear and present danger the President might not have time to consult with Congress. I hate to think of our country going to war based on a unilateral decision on what the President thinks we should do, alone. By the way, war is never been a unianimous decision and I hope it never is. There will allways be some in Congress that oppose military action and should be.

Had Alito not put CAP on his resume for a job in the Reagan Administration, then it would never have come to Senator Kennedy's attention.

This is from The Daily Princeton:



http://www.dailyprincetonian.com/archives/...ews/14221.shtml

Alito, at best, was guilty of padding his resume--a form of dishonesty.

Because of his evasiveness and at times conveniently forgetting the truth, I would like to see Alito defeated. I don't think that's going to happen. As a Democrat, I think we should go ahead and vote then the merriment about Abramoff, Tom Delay, Karl Rove and illegal wiretapping, etc. can resume.